Citation Nr: 1805017 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-05 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral leg pain, to include as secondary to the non-service-connected cysts of the legs and the residual scarring. 2. Entitlement to service connection for a cervical spine disorder, to include cysts and residual scarring. 3. Entitlement to service connection for bilateral hearing loss. 4. Entitlement to service connection for type II diabetes mellitus. 5. Entitlement to service connection for hypertension, to include as secondary to the claimed type II diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1976 and from January 2008 to January 2009, to include a tour in Southwest Asia during the Persian Gulf War. The Veteran also had unverified service with the Texas National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2016, the Veteran testified in a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A copy of the transcript of that hearing has been associated with the Veteran's claims file. Via correspondence received in November 2017, the Veteran indicated that he did not wish to appear for another Board hearing in this matter with another VLJ. This appeal was previously remanded by the Board in July 2016 for additional development. Since that remand, service connection has been granted for: cysts on the thighs, back, legs and nape of neck; degenerative arthritis of the left knee; and degenerative arthritis of the right knee. Therefore, the issues of entitlement to service connection for cysts of the legs, to include residual scarring, and for a bilateral knee disorder, to include as secondary to the service-connected bilateral pes planus, corns, calluses, hammertoes, postoperative, are no longer on appeal, as they have been granted in full. As such, they are not addressed in this decision. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In this appeal, the Veteran claims entitlement to service connection for the numerous disabilities reflected above on the title page of this decision. Central considerations in the adjudication of each of those claims of entitlement to service connection include the dates of the time periods during which the Veteran served, and whether each period of service was comprised of active duty, active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), or other full time duty/service. See 38 C.F.R. § 3.6. In the prior July 2016 Board remand, the RO/AOJ was directed to request verification of all dates of active duty, ACDUTRA, and INACDUTRA that the Veteran had with the Texas National Guard. The Appeals Management Center (AMC) subsequently drafted a memorandum and associated the same with the Veteran's claims file, and that memorandum indicates that the Veteran served on active duty in the Army from September 1974 to August 1976 and on ACDUTRA/INACDUTRA from December 2008 to December 2009. This memorandum failed to draw a distinction between ACDUTRA and INACDUTRA, as related to the latter period of service. Further, it failed to address the categorization of the Veteran's service during all other periods of time. In this regard, the Board notes that included in the claims file are "DPRIS Response[s]" which include copies of Army Commendation Medal certificates that the Veteran earned, for example, for what appear to be periods of service from April 1984 to December 1990 and from July 1998 to August 1998. See, e.g., DPRIS Response received in August 2016. With this being the case, the Board finds that additional development is necessary, prior to adjudication of this appeal, for the purpose of gathering more information about the Veteran's different periods of service with the Army and Texas National Guard. Specifically, the RO/AOJ or AMC should research and verify all periods of active duty, ACDUTRA, INACDUTRA, or other full time duty/service that the Veteran has had with the Army, Army Reserve, Texas National Guard, or other military branch or component. This information is particularly (though not exclusively) vital to the Veteran's claims of entitlement to service connection for Type II diabetes mellitus and hypertension, to include as secondary to Type II diabetes mellitus, since the Veteran firmly contends that his diabetes was incurred during his service. See Transcript of Hearing Before the Board, dated in February 2016. Furthermore, in an April 2005 letter authored by the Veteran, which is contained in his service treatment records (STRs) for his January 2008 to January 2009 period of service, he stated that he was under the care of a Dr. Ohia for his diabetes. A June 2004 letter authored by Dr. Ohia, which can also be found in those STRs, confirms that treatment for diabetes, as well as other treatment for hypertension, on or about the date of that letter. During his February 2016 Board hearing, the Veteran again mentioned that he received treatment for diabetes around that time from Dr. Ohia, or a Dr. O'Hare (phonetic spelling). However, complete medical records from this/these doctors do not appear to be associated with the Veteran's claims file. Thus, on remand, those records should be sought and obtained, if possible. Finally, the Veteran was afforded a VA examination for the purpose of determining the etiology of his diabetes in October 2016. The examiner opined that the Veteran's diabetes was etiologically related to his "environmental exposure in Vietnam" while serving between 1974 and 1976. However, as pointed out in the December 2016 Supplemental Statement of the Case (SSOC), the Veteran has not been shown to have served in Vietnam or to have been exposed to herbicides. Thus, the examiner's reasoning and rationale are based on mistaken facts, rendering that diabetes examination unreliable as to whether the Veteran's diabetes was related to his period of service from 1974 to 1976. The examiner also contradicted herself shortly thereafter in that opinion, when she first indicated that the Veteran's diabetes was not clearly and unmistakably not aggravated by his second period of service, then went on to explain, in essence, that the Veteran's diabetes was not aggravated by that period of service. For those reasons, the Veteran should be afforded another VA examination addressing the etiology of his diabetes, to include whether it was aggravated by his 2008-2009 period of service. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate entities, to include the United States Army Reserve and the National Personnel Records Center (NPRC) and the Joint Service Records Research Center (JSRRC), and request verification of all dates of active duty, ACDUTRA, INACDUTRA or other full time duty/service that the Veteran has had with the Army, Army Reserve, Texas National Guard, or other military branch or component. Reports of retirement points are not sufficient to meet the requirement of this Remand order. A listing of specific dates of service and whether within those dates the service can be characterized as active, ACDUTRA, INACDUTRA or other full time duty/service is required. All information obtained in this regard must be added to the record. If any such information cannot be obtained, the reasons therefor must be fully documented and associated with the Veteran's claims file. 2. Make a written finding regarding the exact dates of the Veteran's active duty, ACDUTRA, INACDUTRA and all other full time duty/service. If, after thorough development, such dates cannot be ascertained, this should be specified. 3. Obtain copies of the complete updated VA and private medical records of all evaluations and treatment the Veteran received for his bilateral leg pain, cervical spine disorder, bilateral hearing loss, Type II diabetes mellitus, and hypertension. As needed, signed release forms for private records should be obtained. All requests for records and responses must be associated with the claims folder. Specifically, such attempts (in compliance with the provisions of 38 C.F.R. § 3.159(c)) should include but not be limited to those made to obtain the Veteran's medical records from the private office(s) of Doctors Ohia and/or O'Hare. See Letter from Veteran dated in April 2005, contained in the Veteran's STRs dated in February 2012; Transcript of Hearing Before the Board, dated in February 2016. 4. After completing the above actions, schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's Type II diabetes mellitus. The entire claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale. Specifically, the examiner is asked to address whether: (a) the Veteran's Type II diabetes mellitus is at least as likely as not (a 50 percent or greater probability) etiologically related to active service; (b) the Veteran's Type II diabetes mellitus clearly and unmistakably preexisted his second period of active service (2008-2009) and was clearly and unmistakably NOT aggravated by his this period of service. To the extent possible, the examiner should try to ascertain the approximate time frame in which the Veteran developed type II diabetes mellitus. In reaching an opinion, the examiner is specifically asked to consider that the Veteran left active service in January 2009. 5. After completing the above actions, and any other indicated development, the issues of entitlement to service connection for bilateral leg pain, cervical spine disorder, bilateral hearing loss, type II diabetes mellitus, and hypertension must be readjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).